Bills Digest no. 22 2009–10

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

A Bill that is materially the same as this Bill was introduced
into the Senate on 25 June 2009 (the
Telecommunications Legislation Amendment (National Broadband
Network Measures No. 1) Bill 2009). Prior to that, on 13 May
2009, the Senate had voted in favour of a motion to refuse
consideration of any bill relating to the Government s new national
broadband network unless the Government made public two reports
concerning its original national broadband network proposal. Those
reports have not been made public and that motion stands at the
time of writing. On 19 August 2009, the Government introduced into
the House of Representatives this Bill that is, as noted, in all
material respects the same. According to the second reading speech,
the Government took this action to progress the Bill and the
rollout of the National Broadband Network. The digest for the other
Bill is materially identical to this one.

The Bill amends Part 27A of the
Telecommunications Act 1997. Part 27A enables the Minister
to require telecommunications carriers to give information to the
Commonwealth about their telecommunications networks. In 2008, when
Part 27A was enacted, the Commonwealth required this information so
that it could provide it to those firms that intended to submit a
proposal for the Government s first, now-terminated,
fibre-to-the-node National Broadband Network (NBN #1).

This Bill does three things. It removes a sunset clause which
made most of Part 27A inoperative after 26 May 2009. It expands the
class of firms from which information can be compulsorily obtained
to include utilities. It also changes the purpose to which the
information can be put. Information is to be received for the
purpose of the implementation study that the Commonwealth is to
conduct and by the company (NBN Co) that the Commonwealth has
established to own and operate a new fibre-to-the-home national
broadband network (NBN #2).

As suggested by the comprehensive and helpful explanatory
memorandum to Bill, which exceeds, in length, the Bill it describes
by a factor of almost three, this Bill is not particularly
controversial (as distinct from the national broadband network
proposal itself which is not without controversy).

Part 27A was enacted to facilitate the building of a national
broadband network, this being an element of the election platform
of the Australian Labor Party in 2007. A history of that proposal
up to June 2008 in set out in the digest for the earlier Bill but
is summarised here.

The salient facts are that the original proposal to create a
fibre-to-the-node (FTTN) network involved a significant
modification of Telstra s network rather than the building of an
entirely new one. The main changes were to be in that part of the
network known as the customer access network. This is the part
linking residential and business premises with the local Telstra
exchange. The original proposal would have seen the replacement,
with optic fibre, of the segment of bundled copper wire running
from the exchange to a point of aggregation near premises (called a
node). With the installation of electronic equipment at the node,
faster network access speeds would have been available than with
the current common technology which places such equipment in
Telstra exchanges.

Under the original proposal these network modifications were to
be developed under a request for proposals (RFP) process. In order
for proponents to submit informed, properly costed proposals, they
required information about existing telecommunications
infrastructure.

On 11 April 2008 well before the legislation had passed through
Parliament the Minister announced
the issue of a
request for proposals for the modification of the network.
Proposals were due by 25 July 2008. Because the passage of the Bill
was taking some time (it did not pass through Parliament until 15
May 2008), the Government extended this time until 26 November
2008 so that there was sufficient time for the carriers to provide
information of the requisite kind and for prospective proponents to
assess that information and formulate their proposals.

By the RFP deadline, six proposals had been received including
one from Telstra.

On 15 December 2008, Telstra announced
to the Australian Stock Exchange that it had been excluded from the
national broadband network RFP process.[1] In its proposal, Telstra had failed to
address one of the mandatory elements in the RFP by not providing a
plan explaining how it would involve small-to-medium enterprises
(SMEs) in the building of the NBN. Consequently its proposal was
non-compliant. The Commonwealth would have been exposed to the
ongoing risk of legal action by another bidder or bidders were it
to have allowed Telstra s proposal to remain under
consideration.

On 22 January 2009, the Minister announced
that he had received the report of the Expert Panel on the
compliant proposals.[2] The Expert Panel had been
appointed in March 2008 to assess the responses to the
RFP.[3]

In an
published extract of the Expert Panel s report the Government
having declined to publish the full report the panel said that all
of the proposals were to some extent underdeveloped and that none
provided value for money, one of the dominant principles of
Commonwealth Government procurement.[4]

Consequently, on 7 April 2009, the Government terminated the RFP
process. It announced
that instead it would establish a company to build, own and operate
a wholesale fibre to the home network.[5] Ninety percent of homes, schools and
workplaces will be connected to the network with optic fibre cable.
The remaining ten percent of homes, schools and workplaces will be
connected with terrestrial and satellite wireless services.

The initial announcement stated that company will build and
operate the network, but the Minister later explained that the
Government contemplated the possibility that the company would
secure the use of existing facilities in a range of ways including
purchase, exchange for equity in NBN Co or one or more of a variety
of other legal arrangements.

The Commonwealth will make an initial investment in the company
but might issue retail bonds for the rest of its contribution, the
extent of which is unknown. NBN Co itself will be able also borrow
in its own right.

The Commonwealth will be a majority shareholder of the company
but it will sell down its interest in the company within five years
after the network is built and fully operational.

The Minister s media announcement of 7 April 2009 sets out a
plan of action to be given immediate effect. The elements of the
plan and the developments to date are;

A company will be established to own and operate the national
broadband network. On 9 April 2009, the company (ACN 136533741) was
established. At the time of writing it is called NBN Co Ltd. On 25
July 2009, the Minister announced
the appointment of Mike Quigley as executive chairman of the NBN
Co.[6] On
6 August 2009, the Minister announced
appointments to the board of NBN Co.[7]

A
discussion paper on proposals for regulatory reform including
possible forced separation of Telstra s network and retail arms and
changes to the access regime was issued in April 2009[8] with well over 100
submissions received by 3 June 2009. On 3 July 2009, the
Minister sought
more views on a number of matters including the regulatory
arrangements for the new network.[9] Submissions were required by 30 July 2009 but have
not been published at the time of writing.

Arrangements are to be made for the conduct of an
implementation study to inform the Commonwealth on matters such as
network design and operating arrangements which will involve, in
some capacity, a lead advisor. A request for expressions of
interest for the provision of lead advisory services was issued in
April 2009 with responses due by 19 May 2009. Following that, a
request for tenders was issued the outcome of which was the
announcement, on 6 August 2009, of the appointment of McKinseys
and KPMG as lead advisors.[10] Neither the request for tenders nor the tenders are
publicly available.

Measures are to be taken to deal immediately with some regional
backbone blackspots. A
consultation paper was issued in April 2009.[11]
Submissions were received until 12 May 2009. A request for
tender was issued on 1 July 2009 with responses due by 5 August
2009.

Negotiations with the Tasmanian Government are to be expedited,
to build upon its proposal in response to the Government s 2008 RFP
process. The Tasmanian Government s proposal found favour with the
Expert panel which recommended that the proposal be used as the
basis of a plan for an immediate rollout of the network in
Tasmania. On 16 July 2009, Aurora Energy, which is central to the
Tasmanian Government s project, issued a
request for tender for the provision and management of optic
fibre cables. Tenders are due by 16 August 2009. On 25
July 2009, the Minister announced
the appointment of Mr Doug Campbell as executive chairman of the
Tasmanian NBN company (TNBN Co), which is a subsidiary of NBN
Co.[12] TNBN Co was
established on 13 August 2009.[13]

Legislative changes are to be progressed to deal with matters
concerning NBN Co and to facilitate the rollout of fibre networks,
including requiring greenfields developments to use
fibre-to-the-premises (FTTP) technology from 1 July 2010. No
legislative changes other than those proposed in this Bill have
been introduced at the time of writing. On 3 July 2009, the
Minister sought views on the regulation of the company including
governance arrangements and ownership matters. Submissions were due
on 30 July 2009. On 13 August 2009, the Minister announced
that he was establishing a stakeholder group to advise on the
development of a policy on the rollout of fibre-to-the-home in
greenfields estates.[14]

In broad terms, the main changes effected by this Bill are to
expand the class of firms that can be required to give network
information to the Commonwealth to include utilities and to change
the purpose for which the information can be used.

Both of these changes can be explained by the differences in the
nature and proposed manner of implementation of the first and
second national broadband network proposals.

A further minor, but important, change is made to amend a sunset
clause in the original legislation which caused most of the
provisions to cease operation on 26 May 2009.

How has the change in the kind of proposed network changed
the information required?

The NBN #1 proposal mainly concerned modifications to the
Telstra access network (the replacement of a segment of the copper
wire that links premises to the local Telstra exchange). As such,
most of the information required by the Commonwealth was
information about Telstra s customer access network (in particular,
the location of the nodes at which the copper wires connecting a
cluster of premises is aggregated before running as a bundle or
bundles to the Telstra exchange).

In its new NBN #2 proposal, the Government s policy speaks of
creating an entirely new network and not just of modifying the
access network. This will certainly involve significant
modifications to the access network (the replacement or duplication
of the copper wire from premises to some point deeper into the
network, like a Telstra exchange). However, under this proposal,
the Government also envisages that the NBN Co will also build, buy,
or acquire some rights of use in, elements of the network on the
other side of the exchanges (the core network) including, perhaps,
other non-communications assets.

As such, the Commonwealth may now require information about an
additional range of existing infrastructure. This will include
information about existing carrier-owned telecommunications
infrastructure like fibre transmission links, points of
interconnection, ducts, pits and poles. However, it could also
include infrastructure held by utilities. This latter category
could include both communications facilities and other assets that
could be used for new communications facilities like land corridors
(where rail lines, electricity lines or pipelines run), poles,
towers, water, sewage or gas pipelines and conduits. Information
about the infrastructure of utilities is not currently dealt with
in Part 27A of the Act.

How has the change in the implementation of proposed network
changed the information required?

Proposals for NBN # 1 were provided by the private sector and
State Governments. It was those parties to which the Commonwealth
was empowered to make available the network information given under
Part 27A of the Act.

With three qualifications, the NBN #2 plan will be developed
through an implementation study, the lead advisors of which,
McKinseys and KPMG, were announced
on 6 August 2009 and will be implemented by NBN Co.[15] The existing terms of
the Act authorise the receipt of information by McKinseys and KPMG.
However, minor amendments are required to authorise the receipt of
information by those in the Department who are engaged on the
implementation study and by the NBN Co and its suppliers.

The Bill was referred to
the Senate Environment, Communications and the Arts Committee for
inquiry. The Committee s report was tabled on
17 August 2009. Details of the inquiry are at
http://www.aph.gov.au/senate/committee/eca_ctte/nat_broadband_bill_2009/index.htm.

The technical and incremental nature of changes being made to
Part 27A by this Bill militate against mainstream media interest.
The Bill has, however, attracted some attention in the industry
media. For instance, on 29 June 2009, an
opinion piece by influential communications analyst, Richard
Chirgwin, the industry publication Commsday, observed that the Bill
is for the most part, entirely unnecessary because most of the
information about these utilities is already available to the
public in the form of maps . Further, he notes that much of the
information about the infrastructure of utilities is mapped by
State governments which would likely provide this to the
Commonwealth without much hesitation.[16] In his blog, David Havyatt, manager
of Regulatory and Corporate Affairs at wireless internet access
provider, Unwired, correctly observes that the clauses in the Bill
requiring that instruments to be published on the internet are
meaningless, and should refer to a website. He also addresses some
of the objections that have been raised to the original legislation
by, for instance, Telstra and Pipe Networks.[17]

Nine submissions were received by the Senate committee that is
conducting an inquiry into the Bill. The following observations
were made in those submissions:

Optus

Optus said that it has already been required to provide
information under the original legislation and that it has no
concerns with the current amendments which seek to change the focus
of the legislation to the Government s current proposals for a
fibre to the premise NBN . Further, it says;

we anticipate that this is a necessary piece of
legislation to assist with the efficient and cost effective
roll-out of the NBN. It is likely that information obtained under
this legislation, including that from utility companies, will
enable more informed decisions to be made about the optimal
deployment of new infrastructure to support the roll-out of the NBN
.[18]

Telstra

Under Part 27A as it is now, Telstra was the principal focus of
the Commonwealth s information requests last year. In its
submission, Telstra agrees with the observation in the explanatory
memorandum that due to its existing networks [it] is likely to be
the major discloser of information under the Bill .

Telstra s comments on the Bill are supportive. It says that it
agrees that the builder and operator of the NBN, NBN Co, will need
access to information from a range of telecommunications and
utility infrastructure providers in order to deliver the
Commonwealth s vision for the NBN . However, it expresses a concern
about the principle of competitive neutrality being breached given
that carriers information will be disclosed to the NBN Co, a
publicly held company, that may compete in some markets with the
carriers.[19]

Telstra raises two considerations that, it says, ought to be
kept in mind in finalising the Bill. The first is that effective
security arrangements are put in place to protect the information
provided by carriers and utilities under the regime. The second is
that carriers and utilities providing information should have
certainty about their rights obligations and exposure in relation
to the subsequent use and disclosure of the information provided
under the regime .[20]

Telstra rightly notes that the Act currently contemplates that
an instrument will be made dealing with security issues (see
subsection 531H(4)). However, the Act does not set out any matters
that must be taken into account in the consideration of the content
of such an instrument. Telstra suggests that the Act be amended to
set out the matters that must be addressed in the instrument. It
says that the rules in the instrument should cover at least the
following topics;

Hardware and media destruction sanitisation procedures (and
destruction should be mandatory upon occurrence of specified
triggers, including a material breach of any provision of Part 27A
or of the Rules);

Telstra says that the Bill is not sufficiently clear about the
nature of the information that might be requested in an instrument
made by the Minister. While it says that it understands that the
kind of information likely to be required is information about
physical components of the networks of telecommunications carriers
and utilities, the drafting in proposed clause 531(1A) is not
obviously limited to that kind of information. It could include,
for instance, business plans and other information concerning the
way in which a carrier intends to use its physical network
infrastructure commercially .[22] This would, it says, would raise serious issues
of fairness and competitive neutrality, particularly given the
majority stake of the Commonwealth in NBN Co and its position as a
market participant for years to come .[23]

Telstra seeks protection from liability for parties providing
information that is unintentionally inaccurate in any way when that
information is disclosed to the NBN Co or its contractors. It notes
that it is not the carrier or utility that selects the information
that is to be disclosed and therefore considers it would be
reasonable for the Bill to include an immunity from claims against
any carrier or utility who provides information under the regime
.[24]

Last, Telstra points to a drafting oversight which would leave
those parties that received information in 2008, under the existing
provisions of the Act, in a position that they could use the
information for their own benefit if they still possessed
it.[25] Telstra
does not identify the drafting oversight. However, the Department
did address this issue in evidence before the Senate inquiry into
the Bill. It says that all information that was provided to
proponents has been handed back or destroyed and that statutory
declarations to that effect have been made.[26]

Water Services Association of Australia

Upon being invited to make a submission, the Water Services
Association of Australia (WSAA) made several criticisms, many of
which were beyond the scope of the Bill and concerned the
suitability of water infrastructure for use in a telecommunications
network. To the extent that it commented on the Bill itself, it is
concerned that there are national security implications associated
with the release of this information. It notes that the legislation
contemplates that the Minister may make an instrument for the
handling, storage and disposal of network information in order to
protect the security and confidentiality of such information. Until
such an instrument is drafted, it is not possible to provide any
further comment regarding this matter .[27] In fact, such an instrument has been
made under the existing legislation.[28]

Australasian Railway Association

The Australasian Railway Association, in a ten page submission,
addressed the possible consequences of the use of rail
infrastructure for telecommunications purposes but did not address
the Bill itself except to note that it was not consulted on
it.[29]

Unwired suggested that the Bill is primarily seeking access to
public information in a more useable form and, as such it does
nothing to infringe private commercial rights of confidentiality
nor to expose risks to assets. [31] Further, the Bill does not go far enough in that
it is unnecessarily restrictive in the purposes for which the
Minister may obtain, use and disclose information .[32] Unwired points out
that there are already several legislative regimes under which
network information can be required to given by carriers to the two
regulators, the Australian Communications and Media Authority
(ACMA) and the Australian Competition and Consumer Commission
(ACCC) as well as to other carriers but that none of these regimes
give the Department a right to ask for such information. It
suggests that that there is a case for a single process for
recording and sharing within Government details of utility
infrastructure .[33] Unwired also makes some accurate observations about
some arguments made by others around privacy and confidentiality.
Privacy, at least in the way that word is used in the Privacy Act,
concerns personal information about people and not corporations and
so need not be a concern in relation to this Bill. It says,
however, that the Bill may raise issues of confidentiality of
network information but only to the extent that that information is
not already in the public domain which is the position in relation
to almost all infrastructure.[34]

As to the arguments that have been made in relation to Part 27A
generally (and not this Bill in particular), that issues of
national security arise from the release of network information,
Unwired says, in dismissing such concerns;

The other claim mounted has been that release
of some of this information could create a risk to national
security. A fact of networks is that if you want to attack them the
best point for the attack is a node rather than a link. All the
nodes are very visible. In fact most of the links are visible,
including routes with labelled manhole covers and even topographic
maps showing the course of power lines.[35]

Energy Networks Association

While being supportive of the Government s plan to develop the
national broadband network and of the efficient use of existing
infrastructure, the Energy Networks Association has four concerns
about the Bill. The first is that it considers that more time
should be given to utilities to consider and comment on the draft
instrument that the Minister makes to require that information be
given to the Commonwealth (the Bill proposes a consultation period
of 5 days). Secondly, it is concerned with the cost of providing
information, particularly where IT system changes are required to
capture the information in the required form. Thirdly, it is
concerned about the security of the information that utilities are
required to provide and that appropriate controls are in place when
that information is disclosed. Lastly, it is concerned about the
burden of information requests on companies that do not have
systems in place to extract the required information in the form
required by the Commonwealth. (It should be noted that this last
criticism does not concern the Bill directly but rather instruments
made under the Act as it is now and that these concerns can
therefore be addressed under the consultation process that is
already in the Act).

Integral Energy

Integral Energy generally supports the Government s latest NBN
proposal and acknowledged the benefits of the use of existing
infrastructure. It does not raise concerns about the Bill itself
but rather about aspects of the instruments that the Minister may
make under the Bill. These concerns are that information requests
should reflect an understanding of the electricity sector and that
the Department should engage with the sector before any draft
instruments are issued; that a reasonable amount of time be given
for information to be supplied; that there be sufficient controls
over the disclosure and use of information; and that compensation
is paid on a cost basis for information provided to the
Commonwealth.[36]

Business Council of Australia (BCA)

The Business Council of Australia (BCA) asserted that the
disclosure of some network information to the publicly owned NBN Co
could confer a competitive advantage on it and that this would be
contrary to principles of competitive neutrality.[37]

With regard to the application of Part 27A to utilities, the BCA
says;

In the case of utility and other network
companies, it is not clear that there is a need to compulsorily
require information. If the purpose of acquiring information is to
explore options for accessing the infrastructure of utility
companies on commercial terms, then those companies would be likely
to provide the requested information on a voluntary basis where it
is in their interest to do so.[38]

Most of the BCA s concerns, however, are best characterised as
concerning the latest NBN proposal itself notably its use of a
publicly held company to effect the rollout and the failure of the
Government to assess the benefits of the proposal and not the Bill
itself.

In its submission, Unwired criticises the Bill s requirement
that subordinate instruments be published on the internet and
notes, correctly, that this is meaningless. The point being made is
that the internet is not the web. Presumably, it is intended that
such instruments be published on the Department s website. The
legislation ought to say that and to state that it remain on the
website for a specified time.

Items 1 to 8 either insert new defined terms,
point to new defined terms in Part 27A, or repeal redundant
ones.

Item 9 replaces the simplified outline of Part
27A with a new one.

Items 10 to 13 make changes to definitions to
reflect the new purpose for which information is to be requested.
That is, that information will be requested for the purposes of an
implementation study or to be given to the NBN Co or some of its
contractors and not for the purposes of the now-terminated RFP
process.

Item 14 repeals the definition, in section
531B, of protected carrier information this being the information
that was given by telecommunication carriers under the existing
provision of Part 27A.

Item 15 inserts into section 531B a definition
of protected network information which is in substantially the same
terms as the definition of protected carrier information but
includes information received from utilities and some minor
technical differences relating to the time at which information is
received. As before, protected network information can be
information given voluntarily or compulsorily under the proposed
changes.

Item 16 inserts new definition of utility into
section 531B. A utility broadly includes suppliers of electricity,
gas, water, sewerage or drainage and suppliers of carriage and
transport services. It also includes anyone who owns a structure or
thing used for the provision of those services.

Item 17 inserts proposed section
531BA which allows the Minister to determine via (a
disallowable) legislative instrument that another company is a
designated broadband company . Such a company can receive
information like NBN Co does. The Tasmanian NBN Co. will be an
example of a designated broadband company.

Item 18 makes minor amendments to include
utilities within the ambit of Part 27A.

Item 19 inserts proposed subsections
531C(1A) and 531C(1B). Existing section 531C allows the
Minister to make a written instrument requesting information from
carriers and utilities. Whilst this is not a legislative
instrument, it is nonetheless disallowable under existing
subsection 531C(7). The proposed amendment puts limits on the kinds
of information that the Minister may request. In general terms, the
information must concern existing or proposed things that could be
used in connection with the national broadband network.

Items 22 and 23 amend section 531C to extend,
from 3 to 5 days, the period of consultation that the Minister must
allow when he makes a draft information request.

Item 24 repeals sections 531D and 531E which
deal with concepts unique to the first national broadband network
proposal that are not longer relevant.

Item 25 repeals Division 2 (which consists of
only one section (section 531F)) and replaces it with a new
Division 2. Existing section 531F obliged a person to
comply with a notice requesting information. However, the provision
was expressed to cease operation 12 months after its commencement.
That time has passed and the provision needs to be amended
accordingly. The obligation to comply with an information request
is proposed to continue for 10 years after commencement of the
section (proposed subsection 531F(5)). In
addition, new Division 2 prohibits a person from being involved in
a breach of the main obligation by, for instance, aiding and
abetting or inducing a breach of the obligation (proposed
subsection 531F(3)). New Division 2 also makes this a civil penalty
provision (proposed subsection 531F(4)). In the case of a
corporation, such a provision carries a maximum penalty imposed by
a court of $250,000 per relevant contravention.

Item 27 amends 531G by making changes to the
way in which an entrusted public official may disclose
protected network information. The changes simply relate to the
different ways in which NBN #1 and NBN #2 are being implemented
(that is, an RFP in the former case and an implementation study in
the latter).

Item 30 inserts proposed subsections
531G(2A), (2B) and (2C) which allow the Minister to make a
new kind of (disallowable) legislative instrument setting out the
conditions on which an entrusted public official may disclose
information to another public official.

Items 32 and 35 amend section 531G in an
identical manner to items 27 and 30 above but in relation to the
use of information rather than disclosure.

Item 39 repeals section 531H which sets out the
rules for disclosure of information to those involved in the
now-terminated RFP process and replaces it with proposed
section 531H which sets out rules for disclosure to
officers of NBN Co or a designated NBN Co . The new section retains
the Minister s power to make legislative instruments limiting the
way in which information may be used (existing section 531N, which
is retained under this Bill, allows the Minister to make restricted
recipient rules limiting the people to whom information can be
given. Subsection 531H(3) also retained allows the Minister to make
a legislative instrument setting out the purposes for which
information can be given.)

Item 41 amends section 531K to make changes to
the circumstances in which an entrusted company officer may
disclose information to another entrusted company officer . The
changes simply relate to the different ways in which NBN #1 and NBN
#2 are being implemented (that is, an RFP in the former case and an
implementation study in the latter).

Item 44 inserts proposed subsection
531K(2AA) to allow the Minister to make a legislative
instrument setting out other conditions on the disclosure of
information by an entrusted company officer .

Item 45 substitutes paragraph 531K(2A)(a) to
reflect the different ways in which NBN #1 and NBN #2 are being
implemented (that is, an RFP in the former case and an
implementation study in the latter).

Items 46, 47, 49 55 make changes consequential
upon the inclusion of utilities in the class of person who may be
asked to provide information and minor related changes.

Concluding comments

The legislation in Part 27A sets up a framework under which the
Minister can make a range of instruments. It is these instruments
that will include the detail of the legislation. This is common
drafting practice. It is not practical to in include within the Act
itself the matters that will be addressed in the Ministerial
instruments. Most of concerns raised in submissions to the Senate
inquiry relate to matters that are to be dealt with in subordinate
instruments. They are, therefore, not criticisms of the Bill
per se and can really only inform the drafting of those
instruments when the time comes. However, there is merit in Telstra
s suggestion that, in relation to at least one of the Minister s
powers, the legislation should set some parameters about what the
Minister may determine in an instrument. Telstra made this
suggestion in relation only to the rules surrounding the security
of information. However, were there concerns about the scope of the
Minister s other instrument-making powers, the Act could be drafted
to circumscribe that power.

This Bill makes relatively minor changes to a legislative regime
that, judging from evidence before the Senate inquiry into the
Bill, appears to have operated without significant detriment to
those affected by it. Whether it provided any positive benefit
cannot be judged as the project for which Part 27A was originally
intended was terminated before any evidence of its virtue was
publicly demonstrated.

A reasonable concern has been raised by, for instance, Telstra
and the Business Council of Australia that the provision of
information to the publicly held NBN Co is counter to the
obligations of competitive neutrality that Australian governments
have assumed under the National Competition Policy Agreements. This
has merit but only to the extent that the information is not
otherwise publicly available. However, the use of this publicly
held company is a central feature of the Government s broadband
plans and so this criticism really goes to the policy and not to
this Bill itself. The Bill does not implement the policy but merely
facilitates aspects of it.

Concerns were raised in a submission to the Senate inquiry that
the legislation should provide immunity for providers of
information in the event that another party suffers damage as a
result of relying on inadvertently inaccurate information. This is
a reasonable concern but it needs to be weighed against the need to
create an incentive for providers to disclose accurate information.
In any case, such risks can likely be mitigated by appropriately
worded disclaimers.

On the whole, this Bill makes small changes to an existing
legislative regime that represents only a small piece of the
national broadband network puzzle.

Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2419.

[15] The three exceptions mentioned in the previous
paragraph are a) that in Tasmania, construction of the network will
commence while the implementation study is being conducted; b) the
Minister has foreshadowed that legislation will be introduced in
the middle of this year to mandate fibre to the home in greenfields
estates which, if it occurs, will mean that the legislation will
not incorporate the outcome of the implementation study and c) the
Commonwealth has already received tenders to build some
transmission capacity as part of the backbone blackspots measure
that it announced on 7 April 2009.

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